1988 P Cr (PLP)

(2) A stab wound 3 cm x 1 cm x 8 cm x bracket deep going parallel to the 10th rib 8 cm below the inferior angle of left scapula. (3) A stab wound 1/2 cm x 1/2 cm x skin deep on the right inguinal region. The patient was sighing, his pulse was feeble and condition unsatis?factory. The injuries according to the doctor, were freshly caused with sharp‑edged pointed weapon.

6. S.I. Muhammad Siddiq (P.W.11) was entrusted with investigation of the case. He collected and secured blood‑stained earth from the spot vide memo. Exh.P.G. On receiving the information about the death of the deceased, he reached the hospital and after preparing injury statement Exh.P.K. and inquest report Exh.P.L. of the deceased he sent the dead body for post‑mortem examination. He arrested the appellant on 18‑9‑1982 and recovered blood‑stained dagger P.2 with 6" long blade at his pointation from underneath the bricks lying it his house on the same day vide memo. Exh.P.H attested by Muhammad Younas (P W.10) and the Investigating Officer (P.W.11).

7. Dr. Akhtar Hussain (P.W.5) conducted post‑mortem examination on the dead body of the deceased on 17‑9‑1982 at 4 p.m. and opined that the deceased had died due to excessive haemorrhage. Injury No.2 was found sufficient to cause death in the ordinary course of nature. Injury No.1 was declared as grievous and injury No.3 as simple. The time between injuries and death was 3 hours and between death and post‑mortem examination about 4 hours.

8. The appellant at the time of his arrest had injuries on his person and was medically examined on 19‑9‑1982 by Dr. Ashfaq Ahmad Khan (P.W.1) who noted following injuries:‑ (1) Multiple abrasions 4 cm x I cm on front of right side of neck. (2) Septic wound 4 cm x 1 cm on front of left leg. In the opinion of the doctor, the injuries were simple in nature caused with blunt weapon within the duration of about two days. According to him, the injury on the neck was not caused due to pressing of the neck by another person

9. Blood‑stained earth as well as dagger P.2 were found as stained with human blood, vide Chemical Examiner's report Exh.P.N. and Serologist's report Exh.P.O.?

10. At the trial the prosecution examined 11 witnesses in support of its case and mainly relied on the evidence of motive and ocular account furnished by Abdul Rashid (P.W.6) and Bashir Ahmad (P.W.7) and testimony of Muhammad Akbar (P.W.10) about recovery of dagger (P .2) from the appellant besides medical evidence furnished by Dr. Muhammad Akhtar (P.W.5) who stated that the deceased had died of injuries noted above.

11. When examined under section 342, Cr.P.C. the appellant denied the motive as well as the recovery of dagger (P.2), but admitting the occurrence he claimed self‑defence in the following words:‑ "On 17‑9‑1982 at about 8/9 a.m. 1 was present at the gate of Abdul Salam's factory where the deceased Tauqir Qaiser alongwith Khair Din given up P.W. came. The deceased caught hold of me while Khair Din gave stick blow to me on my leg by saying that both of them would teach me a lesson, as according to them, I had been creating trouble to them against their bad activities. At that time the deceased was armed with a Chhuri which he had kept under a belt on his leg. When I fell on the ground the deceased pressed my neck so forcibly that I was about to die due to the strength and force used by the deceased resulting thereby a great suffocation, when I per chance saw the Chhuri of the deceased which came to my hand and I in exercise of my right of self‑defence gave certain blows to the deceased with this Chhuri " He produced two witnesses in his defence. Hafiz Maqsood Ahmad (D.W.1) stated that Muhammad Younas (P.W.10) has sworn affidavit Exh.D.B. denying that dagger P.2 was recovered from the appellant in his presence. The defence witness namely, Riaz Ahmad, Assistant Superintendent Jail (D.W.2) deposed that he identified the deponent Muhammad Younas at the time he swore affidavit Exh.D.B.

12. Learned trial Court on consideration of the material on record discarded defence plea observing that according to medical evidence abrasion found on the neck of the appellant was not the result of pressing of the neck; that had the deceased been carrying Chhuri on his person then he would have used it against the appellant if he intended to kill him and that no evidence in support of his self‑defence had been produced by the appellant. Consequently, it believed the prosecution version and finding the appellant guilty under section 302, P.P.C. sentenced him to death because it was a premeditated and preplanned murder.

13. It is contended on behalf of the appellant that the testimony of eye‑witnesses, Abdul Rashid complainant (P.W.6) and Bashir Ahmad (P.W.7) cannot be implicitly relied upon, for they are close relations of the deceased and that nobody from the locality came forward to support the prosecution version; that the motive part of the story has not been proved beyond doubt, as the only independent witness on the point, namely, Riaz Ahmad, has not appeared; and that the plea of self‑defence raised by the appellant is more reasonable and probable than the prosecution story, which must have been accepted and the appellant acquitted of the charge but learned trial Court had unjustifiably denied the benefit. Alternatively, he argued that the appellant and the deceased seem to have engaged themselves in sudden fight on chance meeting wherein the appellant inflicted injuries to the deceased, therefore, the offence committed by the appellants, at the most, would be culpable homicide not amounting to murder. Lastly, learned counsel submitted that since the element of premeditation is absent, therefore, the appellant, at least, deserves lesser penalty. Replying, learned counsel for the State assisted by learned counsel for the complainant argued that, the appellant is a Goonda who carried weapon like dagger P.2 and inflicted successive blows with it to the deceased, who was empty handed. This clearly indicates that the appellant intended to kill the deceased and that in circumstances of the case right of private defence of person was also not available to him. Next submitted that evidence of Abdul Rashid and Bashir Ahmad P.Ws. inspires confidence, which can be safely acted upon. As to the plea of self‑defence, he submitted that it being highly improbable was rightly discarded by the trial Court. He maintained that the sentence of death awarded to the appellant is appropriate and does not call for interference, but the amount of compensation is extremely inadequate, which should be enhanced.

14. We have carefully considered the arguments of learned counsel for the parties in the light of the record.

15. The appellant is solitary accused in the case. He has not disputed the time and place of occurrence and admitted to have killed the deceased in the exercise of his right of self‑defence. The question for determination before us, therefore, is whether in the circumstance of the case, there is: reasonable possibility of the defence version being true?

16. Before proceeding to resolve the above question; it is essential to see if prosecution story as narrated by Abdul Rashid and Bashir Ahmad (P.W.6/P.W.7) has been established beyond reasonable doubt. If the answer is in the negative, then appellant's version only remaining in the field would be accepted without further scrutiny and if the answer is in the affirmative, then both versions shall have to be considered in juxtaposition and in case defence plea appears as reasonably probable, then appellant shall get its benefit as of right. Abdul Rashid (P.W.6), the first informant as well as Bashir Ahmad (P.W.7), father of the deceased wholeheartedly supported the prosecution case. Abdul Rashid in his cross‑examination stated that he was not present at the time of the first incident wherein the deceased had slapped the appellant. He parried the suggestion that Khair Din P.W. and the deceased were annoyed with the accused, as he used to check them from pursuing bad activities or that on account of this both Khair Din P.W. and the deceased attacked him wherein Khair Din P.W. gave Dang blow to the appellant, as a result of which he fell down, whereupon Tauqir Qaisar (deceased) pressed his neck with full force causing him suffocation and that in order to save himself the appellant pulled out Chhuri tucked under a belt tied round the leg of the deceased and with it he injured the deceased in his self‑defence. Bashir Ahmad (P.W.7) stated that on the fateful day at 9 a.m., when he was returning from the Bazar he met his sons Abdul Rashid (P.W.6) and Tauqir Qaisar (deceased) in Baghwali street. He asked Abdul Rashid P.W. as to where they were going, who told him that they were going to the house of their maternal grandmother. In the meantime the deceased had gone ahead of them by 5/7 paces where he was attacked by the appellant. In cross-?examination he stated that when he talked to Abdul Rashid P.W. he had stopped for sometime and also gave him Rs.100 and that he was still standing there when the appellant had attacked the deceased.

17. No doubt, both the eye‑witnesses are close relations of the deceased, but mere relationship is not sufficient to discard their evidence. They have no previous enmity with the appellant. They have furnished reasonable explanation of their being present on the spot at the relevant time. The presence of Bashir Ahmad P.W. is further confirmed by the fact that his name appears in the medico‑legal report Ex.PA, showing that he brought tauqir Qaisar in injured state to the doctor for treatment. Their evidence inspires confidence and is free from any infirmity whatsoever, the very fact that Tauqir (deceased) was removed to the hospital within half‑an‑hour of the occurrence, dispels all doubts that the occurrence was not a witnessed one. For all these reasons we hold that both the eye‑witnesses were present on the spot at the relevant time and had seen the occurrence.

18. Plea of self‑defence raised by the appellant is that he was attacked by the deceased and Khair Din (given up P.W.) because he 'had been creating trouble to them against their bad activities' but no oral or documentary evidence has been brought on record to show that Khair Din P.W. or the deceased were bad characters. The appellant's story that Khair Din gave him a stick blow on the leg and felled him and then the deceased had pressed his neck causing him suffocation and that' per chance the Chhuri kept by the deceased under a belt on his leg came to his hand, with which he caused injuries to the deceased in his self‑defence, is not only improbable but is palpably false, for variety of reasons,' i.e. that the injury found on the front of left leg of appellant appears to be the result of fall on the ground than to have been caused with a stick. If the deceased was carrying a Chhuri on his person, then in all probability he would have used the same against the appellant than pressing his neck with his hands. The medical witness has belied the defence version saying that the injury found on deceased's neck could not be caused by pressing the neck. Had Khair Din and the deceased attacked the appellant for teaching him a lesson, as stated by the appellant, then Khair Din would have showered many blows while the appellant was lying subdued on the ground and the deceased was pressing his neck. In this situation it would have been impossible for the appellant to have stabbed the deceased thrice, without being further injured by Khair Din with a stick. In our opinion, therefore, the defence plea, which is neither reasonable nor probable, has been rightly discarded by the learned trial Court.

19. The next question is that what offence the appellant had committed in view of the proved facts. The deceased at the time of occurrence was empty‑handed, whom the appellant stabbed thrice causing one grievous injury in the right axilla and the other stab wound going deep in the body parallel to the 10th rib, which proved fatal. The appellant thus appears to have not only taken undue advantage of the situation, but also acted in a cruel and unusual manner, therefore, the case falls out of exception 4 of section 300, P.P.C. and the appellant is guilty of committing the offence of murder and not of culpable homicide not mounting to murder.

20. This brings us to the question of sentence. The appellant and the deceased are teenagers and lived in the same Mohalla as neighbours. Even if it is admitted that they had quarrelled a month before the instant occurrence, that had become a forgotten story because during the period of one month intervening the two incidents nothing untoward had happened as we think that both of them being neighbhours must have come across each other many a time after the first incident. We are, therefore, of the view that the occurrence took place on the deceased having met the appellant per chance near the spot. There is nothing on record that the appellant knew that the deceased had a programme of going to the house of his maternal grandmother and would pass through the place of occurrence at the relevant time, therefore, we agree with the learned counsel that element of premeditation on the part of the appellant to kill the deceased is absent. Furthermore, both the eye‑witnesses were in conversation with each other in Baghwali street when the deceased had taken turn at the end of Baghwali street and reached Gujakh Road, when he was attacked by the appellant. According to both the eye‑witnesses, they saw the appellant giving two knife blows to the deceased, whereas the medical witness has noted three injuries on the person of the deceased. It means that before the arrival of the witnesses the deceased had already suffered one blow at the hands of the appellant. It is, therefore, reasonable to infer from the facts that the eye?witnesses did not exactly know as to how the occurrence started, so the origin of the occurrence remains shrouded in mystery. In these circumstances, we find the appellant entitled to the benefit of the lesser penalty.

21. In the result, while dismissing the appeal, we alter the death sentence to imprisonment for life and considering the fine of Rs.5,000 imposed by the learned trial Court as inadequate, we enhance the same to Rs.10,000 (Rupees ten. thousand only) and in default of payment thereof to suffer further rigorous imprisonment for two years. The amount of fine, if recovered, shall be paid in full to the heirs of the deceased. The appellant shall also be given benefit of section 382‑B, Cr.P.C.

22. The reference is rejected and the death sentence is not confirmed. The criminal appeal is dismissed and revision is accepted in the terms indicated above. S. A. /1‑75/L?????????????????????????????????????????????????????????????? Death sentence not confirmed.